Frequently Asked Questions


Should I use my Advance Parole document or H-1B visa when returning to the United States from travel abroad?

It is your prerogative to present either document at entry point.

I am an F-1 student. Can I lawfully remain in the U.S. if I am eligible for a change of status to H-1B nonimmigrant with an effective date of October 1, 2008?

Yes. If your status was still within 60-day grace period at the time of filing the request for change of status to H-1B effective October 1, 2008, the request for change of status is considered timely filed.

Am I eligible for the two-year employment authorization document if I have filed for adjustment of status application?

The two-year EAD is only available to pending adjustment of status applicants who are currently unable to adjust status because an immigrant visa number is not currently available.

I am in U.S. as an E-2 dependent. Do I need to change my status to F-1 in order to pursue a course of study in U.S. Institution?

No. E2 nonimmigrant’s are not precluded from pursuing a course of study either full-time or part-time.

If I qualify for an extension past the H-1B 6-year limit based on approved employment petition may an extension be granted for a period of up to three years?

Yes, provided all other H-1B statutory and regulatory requirements are met.

I am running out of my six years in H-1B status. Under what circumstances can I extend my H-1B status beyond six years?

Law provides two options for such extensions: 1) If you are a beneficiary of an employment-based petition and are eligible for permanent residence but for the per-country limits, and; 2) If you are a beneficiary of employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

I’m a student (F1 status) of doctoral studies in bio-informatics. I would like to file for a green card for my spouse and myself. I also have two Masters degrees. Am I eligible?

There are a number of ways for you to start your immigrant process.

For example, if you or your spouse have close relatives (children over 21, parents, brother or sister) living in the U.S. that are either U.S. citizens or permanent U.S. residents you may be able to petition for permanent residency through them. If neither of you have any close relatives in the U.S., but one of you can procure a job offer, within your field of expertise, from a company/school/research facility then you and your spouse could obtain your permanent U.S. residency as a direct result of your sponsor’s offer of employment.

Husband got arrested, lost his work visa and on July 11th when he will get released he will be picked up by the immigration authorities.How long do they take to deport him once they take him into their custody? Is there a way to avoid deportation?

Me and my husband have been married for 3 years and we have twin daughters who are US husband got arrested for assaulting and he has to serve till July 11, 2005.

Now he has lost his work visa and on July 11th when he’ll get released he’ll be picked up by the immigration authorities and they are going to deport him to India as he is an Indian citizen.

My question is how long do they take to deport him once they take him into their custody ? Is there a way to avoid deportation ? Since we’ve kids who are US citizens we want to come back to US in the future. If they deport him he wouldn’t be able to come back to US since he has to waive all his rights to come back to US. So if any one knows what to do in this situation please advice me.

You should contact an experienced immigration attorney re your husband’s case as soon as he is in CIS custody. At that time your husband will be issued a Notice To Appear (NTA) outlining his immigration charges. Among his options maybe a Voluntary Departure.

I am currently being hired on a TN visa by my firm ( h1s are all capped out the firm wants me to start ASAP) they will be filing for an H1B in April. I am married to a US citizen but since family petition takes several months, I was advised to get company sponsorship and then do adjustment of status. My question is can I get an adjustment of status from TN visa? I am a Canadian.

Yes, you can file for Adjustment of Status based on marriage to a U.S. Citizen while you have a TN visa.

I crossed the border illegally to enter the United States. I have never had any contact with the authorities nor have I come forward with any type of immigration application. Is there anything I can do to legalize my status?

If you have been here less than a year, your only option would be to claim political asylum if you have a legitimate fear of being persecuted in your home country. You would need to file an I-589 application and wait for an interview. If you are successful in your interview you would be granted status as an asylee, and can apply for your permanent residency a year later. If you are unsuccessful at the interview, you will be placed in removal proceedings before the Immigration Court , where you will have a chance to renew your claim for political asylum. Ultimately, if you do not win your asylum case on this level or in the appeals process you will be deported or granted voluntary departure to leave the United States.

I came in legally as a tourist/visitor with a visa, but overstayed and am now illegally here, can I apply for my permanent residency?

Aside from possibility of applying for political asylum through the procedures described above, if an “overstay” has entered into a bona fide marriage with a United States Citizen, they may be able to obtain their permanent residency without having to depart the United States. All other overstays seeking to legalize their status (typically through employment) must return to the U.S. consulate in their home country to receive their visas. This departure, however, may trigger the 3 & 10 year bars which state that an individual illegally in the US for 6 or more months who departs, cannot re-enter the US for a period of not less than 3 years. Similarly, an individual illegally in the US for over a year who departs, cannot re-enter the US for a period not less than 10 years.

The U.S. company that I worked for on an H1B, filed my labor certification (“LC”) about 10 years ago. The same company withdrew my LC application before it was approved because I quit my job and left the country. Now I am back in the U.S., again working on an H-1B visa. Can I reactivate my previously filed LC application?

The LC process is an employer driven process. In other words, the company that filed your LC always has the option to withdraw it, for any reason. Generally, once the application is withdrawn the file is closed and the information submitted is archived. Your employer can always reapply for a new LC on your behalf.

Should my company file my LC now or wait and file it under P.E.R.M.?

Generally, one should not wait to file a LC application. DOL anticipates, that many employers will seek to refile their LCs under P.E.R.M., once this program is implemented. DOL is also expected to allow applicants to convert their previously filed LCs without the loss of the original filing date. Thus, if there is a genuine job opening, most applicants will benefit by filing their LCs now rather than waiting for the implementation of P.E.R.M.

My company wants to file a labor certification (“LC”) application on my behalf. I heard that there is more than one way to file for a LC. What is the quickest way for my company to receive a LC on my behalf?

Currently, the quickest way, for the majority of applicants, to obtain a foreign labor certification (“LC”) is through a process called Reduction in Recruitment (“R.I.R.”). Within one year, the U.S. Department of Labor (“DOL”) is expected to launch their new expedited LC system called Program Electronic Review Management (“P.E.R.M.”). The DOL promises to publish an interim rule implementing the PERM system sometime before the end of this fiscal year.

I heard that the Department of Labor introduced a better and faster way of filing for labor certifications. Is that true? How long will the new process take? Should my employer wait before I filing my labor certification?

Currently the Reduction in Recruitment (“RIR”) is quickest way (for most petitioners) to file labor certifications. However, even this expedited process can take up to 2 years (in California). Recently, Department of Labor (“DOL”) enacted a new labor certification program called PERM. PERM will eliminate the need to initially file applications at the local employment office. Under this system all the applications will be submitted directly to the DOL for final adjudication. The DOL promises a turn around time of 21 days. However, the implementation of this new program is being targeted for the first quarter of 2003. The new system is anticipated to accommodate conversions from the regular/RIR labor certification process to the new PERM. Thus, it is in your best interest to have your employer begin the labor certification process on your behalf as early as possible.

My H1B expires in May so I have to apply for an extension can I get the extension done in the country like before or I have to go to my own country to get the visa extended ?

Note: I have completed 2 years in this country already.

You don’t need to leave US in order to file for your H1B/H4 “status” extension(s). However, if you plan to travel outside of the US, you will need to reapply for your “visa” abroad at the US consulate.

My dad tried to apply for permanent residency in 1999 through labor certification as a skilled worker. A restaurant was sponsoring him as a skilled chef. Everything went smoothly and everything was approved. His I-485 is currently pending and his priority date is near. He had his fingerprints taken and now he needs a medical exam, and a letter signed by the restaurant who is sponsoring him. Problem is: it’s been 6 six years since the start of this whole process, and the restaurant has changed owners. My dad still keeps in touch with the previous owner. But the new owner is refusing to sign the letter, which simply states that my dad will work there as a chef and will earn a weekly salary of this. Is it is over for my dad? Or does he have other options? Please help. Isn’t there a new law called something like AR21 or AC 21. I forgot, it’s something w/ a 21. Does that law apply to him?

I may be able to help your dad. You are absolutely right. There is a new law that could protect you dad so long as:

– your dad has worked for this sponsor for at least 6 months after filing his I-485 (adjustment of status) application, and;

– now has a new restaurant employer where he is working as a chef

What is “Reduction in Recruitment (RIR)”?

This was once an expedited process for filing labor certifications with the Department of Labor. Employers can no longer file new RIR applications. The new electronic filing system is called PERM. PERM process is even quicker then RIR. Please consult an experienced immigration attorney regarding the procedure for filing labor certifications under PERM.

What is cut off date and what is priority date. On the visa availability page, what is that date refer to? Is that the date when labor certification was first filed ?

A Priority Date means the date that the Labor Certification application (previously the ETA 750 A & B) was originally filed with the local State Labor Department office, or if it is a new case under the new PERM Procedure it is the date that the PERM Labor Certification case was filed electronically.

I just heard that the Bush administration is trying to give illegal immigrants with over 3 years in the US, a working visa of 3 years. Is there any truth in that? I can’t find it in any of the US sites.

This is a discussion of several types of currently pending immigration legislation, none of which has been finalized, approved and sent to the President to sign into law. There is nothing official on this yet. However there are many beneficial immigration bills currently pending and if any pass through the Senate and Congress, and are sent to the President to sign, then they are enacted into law. Just stay tuned and make sure your information comes from a reliable source.

My conditional residency (basis thru marriage that ended 4 years ago) had been terminated recently. I filed motion to re-open (pending status). I am married to another U.S. citizen this year and have a child together. My husband had filed I-130 for me. What does immigration laws says in my case?

Your situation is very complex and you will need an immigration attorney to thoroughly interview you, review your documents and assess your situation before giving advice due to the complicated nature of your immigration case.

My labor certification was filed with the Employment Development Department (EDD) in ay 2002. It was transferred to Department of Labor (DOL)in April 2003. How can I find out what LC dates the DOL is currently processing ?

DOL is undergoing tremendous changes. The majority of permanent LC cases from the Regional Offices and the State Workforce Agencies are being transferred to two DOL Backlog Processing Centers in Philadelphia and Texas. These centers are issuing a “45-day letter” to, the employer (and attorneys) asking if it wishes to continue with the processing of

the LC application. The employer is given 45 days from the date of the letter to respond. If the employer fails to, respond, the application will, be closed. Due to this ongoing reorganization, DoL is not yet releasing any case processing time reports. DOL reports that its Backlog Centers are processing al pending LC’s on a “first-in-first-out” basis.

My labor certification was filed with the Employment Development Department (EDD) in ay 2002. It was transferred to Department of Labor (DOL)in April 2003. How can I find out what LC dates the DOL is currently processing ?

DOL is undergoing tremendous changes. The majority of permanent LC cases from the Regional Offices and the State Workforce Agencies are being transferred to two DOL Backlog Processing Centers in Philadelphia and Texas. These centers are issuing a “45-day letter” to, the employer (and attorneys) asking if it wishes to continue with the processing of

the LC application. The employer is given 45 days from the date of the letter to respond. If the employer fails to, respond, the application will, be closed. Due to this ongoing reorganization, DoL is not yet releasing any case processing time reports. DOL reports that its Backlog Centers are processing al pending LC’s on a “first-in-first-out” basis.

Can the new PERM process further delay previously filed labor certification applications?

No. It can only speed it up or keep it unchanged. Contact an experienced immigration attorney who can advise you on weather you could benefit from PERM.

I changed from F1 to H1B. My parents have green cards, and had filed an I-130 (family relation) petition for me while I am here. Now, if I go outside the US and try to get my passport stamped with an H1B visa, can my visa be denied on the basis of filing for an immigrant status?

The H1B visa is a “dual intent” visa. In other words, if you are on an H1B nonimmigrant you are allowed to file for an immigrant status at the same time. Your H1B visa should not be denied solely based on the facts that you have described.

I have been working in the USA for almost three years now in valid H1-B status. My employer has filed for my H1B status extension for additional three years. If my current status expires before the approval for my extension arrives, am I legally allowed to work during that period?

If person is lawfully employed under A-3, E-1, E-2, G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3 or R status, or nonimmigrant visa under INA §214(e) (NAFTA) and files timely application for extension consistent with 8 C.F.R. §214.1, he/she is automatically given 240 days from date of his/her status expiration. 8 C.F.R. §274a.12(b)(20). Thus, you can legally continue to work while your timely filed H1B extension is pending adjudication.

I entered the USA in January 1998 on H4 visa. My status was changed to H1B in March 2000. My company filed an RIR labor certification on my behalf in April 2001. The RIR labor certification was transferred to the DOL Regional Office in January 2002.

In the mean time, my 6th year on H status will expire in January 2004.

1.) How can I legally remain in the U.S.?

2.) If my labor certification gets approved after my company files my 7th year H1B extension, will my H1B extension still be valid?

3.) If my LC is approved anytime between now and June 2003, I plan to file my I-140/I-485 immediately. However, by that time, my I-140/I-485 would not have been pending for more than a year. Will I be eligible for the 7th year H1B extension?

4.) I also want to visit India for 3 weeks in July 2003. If case my LC is approved by then, should I file for I-140/I-485 before going to India, or wait till I get back?


According to the recently enacted Public Law 106-313, as long as 365 days have passed since the filing of a labor certification application or an employment-based immigrant petition (that is filed on behalf of the foreign national), that foreign national’s H-1B status can be extended beyond the 6-year maximum period, in one year increments. If you are in valid H1B status and have a valid H1B visa, you can file your I-140/I-485 at any time after obtaining your labor certification approval.

My husband’s H1 B Visa expires in March of 2004. We wish to seek an extension of three months to enable our son to complete his school term here. Is there a provision for such extension, and if so, what is the procedure?

Your family members do not need to renew their VISAS if all the members of your family have H1B/H4 status lasting beyond March 2003. A new VISA is only necessary if you plan on traveling outside of the U.S. while you are on a nonimmigrant U.S. status.

On the other hand, your husband can petition for the extension of his H1B status for any duration of time up to 3 years, and generally for a maximum of 6 years. Vacation time and personal time of can be recouped even beyond 6 years.

This is a question regarding the H1-B cap. Right now I am in school on an F-1 visa. However, I had been on an H-1B from Jan 2000 all the way to Jan 2003 for two different employers, the first subject to the quota and the second one quota-exempt, without any gaps, and then changed my status to F-1 for going back to school and have been on an F-1 since Jan 2003 to present. If I were to graduate and apply for a H-1B to start a job in June 2004, would I be considered as an H1-B transfer from one company to another and therefore or otherwise not subject to the cap? I have already used up all my OPT from when I completed my last Masters degree and so have none left (I am in a Masters program right now, different field).

ou would not be subject to this year’s (2004) H1B cap, because you have not used up your 6 yrs of allowed H status and have not been outside of the US for over 1 yr since your original H1B approval. Thus, you can now apply for your H1B change of status.

My current H1B visa expires in April of ’05 so I will be starting the process of applying for my H1B extension. I am also applying for Graduate school and would be starting in Fall of ’05, which means that I would only be using the extension for a couple of months. Once I graduate, can I apply for another H1B or, since I applied for an extension already, do I have to leave the US?

You can apply for another H1B extension in the U.S. so long as you have not exhausted 6 full years on H1B status.

My wife is a H1b. I am H4. My wife was assigned by her employer at a different location as stated in the approved petition. Her pay stub shows the company name of this location where she is assigned and not the petitioner with salary lower than what is indicated in the petition. I got a company willing to petition me for H1b. The application was filed and submitted. INS requested for additional documents – my wife’s approved petition and recent pay stub. I need your advise on what to do with this because the pay stub she got is not right.

This is a rather complicated issue. In order for me to give you proper legal advice, I have to review all your (and your wife’s) paperwork.

Somedays ago, I got booked under section 647(B) of the California Penal Code. I did make a mistake but I have no past records and I was immediately released. I am a good person and a good student holding a MSEE from a reputed university. I slipped once and I paid for it.

Although it is a misdemeanor and I will not repeat it ever; it will stay on my “record” (don’t know which one). I was concerned as to how will this affect my H1B prospects when I file one later this year. Again, I have no records and have always been in legal status. Right now I have an EAD.

Generally speaking your criminal record will be reviewed at the time foreign nationals apply for their permanent residency.

This issue should not come up during the H1B extension. However, I caution you if you are traveling outside of the US and require a new visa.

Consult your attorney prior to traveling abroad.


Is my H1-B status affected if my spouse uses her EAD? When can my wife start working? Do I need to apply for an Advance Parole if my wife chooses to use her EAD even though I continue to work on H1-B?

It does not affect the primary H-1B holder, however the H-4 spouse generally cannot be employed because employment is not permitted in this category under the regulations. The answer is different if the H-1B primary holder and his family have an approved Labor Certification/PERM and have concurrently filed the I-140 Petition For Immigrant Worker and all family member applications for all the Adjustment of Status. If the EAD was issued to the spouse as a result of filing her derivative Adjustment of Status Application she can then start working. Also, Advance Parole is available only where there is an existing Adjustment of Status Application pending in the employment-based immigrant visa context.

I am on H1B. My family [wife and two children] stayed with us for three month last year. They were on H4. Can I claim them as dependant on my Tax return?

Yes, you can if they have Social Security Numbers, and you should consult with an competent and qualified accountant as to the details of taking them on as dependants for tax purposes.

My wife’s H4 stamping has been rejected because consulate officer in Calcutta thought my salary is not enough though I am earning $55k/anum.

What steps I should follow to bring my wife here?

The U.S. Consulates and Embassies in that region can be very difficult. Hopefully the wage you are earning is what was listed on the Labor Condition Application that was filed with your H-1B Petition. This problem involves rather complicated issues dealing with the U.S. Consulate and requires hiring a competent immigration attorney to handle this kind of case.

Can you tell me what the immigration laws are on someone on a H1B visa in USA marrying a USA citizen

If your H-1B is still valid, your U.S. Citizen spouse can concurrently file a Family-Based Petition and your Adjustment of Status Application in the United States.

I am currently in H4. I am getting job offers. In order to work early, can I get an H1-B through premium processing. Is it advisable to go thro premium processing. How long will it take to obtain H1-B approval through premium processing. Even if I get approval, will I be able to start my work only on Oct 1st 2005 or earlier than that.

I would appreciate very much if you could reply to my questions. I am in a very confused stage.

You can do the H-1B with Premium Processing, and provided it is done correctly and there are no problems or Requests for Evidence, Premium Processing takes around 15 days from the date of receipt of your case.

I stay in Uk and my employer is filling green card for me to get over in US. What are the papers need to proceed with the processing as I am outside the country as of now.

Your question makes it hard to tell the status of your case. Once the Labor Certification is approved, the employer must file the I-140 Petition for Immigrant Worker, and then it goes through the National Visa Center for the processing of your Employment Based Immigrant Visa case. The time frame depends upon what stage of the process you are in, and that requires more specific details.

I was on an H1 for about 2 years (2001-2003) and have been on an F1 from Sept 2003 to the present in a Master’s program.

I am about to graduate and will need to transition from F1 to H1 again. Is my application for the H1 exempt from the visa cap?

Yes, you are exempt form the H-1B cap.

I came to the United States in 2000 from India, but I filled Asylum petition 2002, my asylum application pending and appeal requested US court of appeals Forth Ninth Circuit. I have already work permit issued from INS and Social Security # from Social Security Administration. I am going to get married with H1B visa holder She from south Asian National, Once I get married my wife can apply for me dependent visa H4 visa. If my H4 visa approved I can change my current asylum applicant status to H4 dependent visa. If possible what I can do my work permit and SS#. Please advice me.

The problem is that you are still in removal proceedings, from what you are saying it looks like your asylum was denied by the Immigration Judge and also the Board of Immigration Appeals and unless you win the U.S. Court of Appeals Ninth Circuit appeal, your order of deportation/removal will then become final and you will have to leave the United States. It is going to be very difficult to get H-4 status if after you return home you apply for the H-4 because you would have been ordered deported/removed from the United States.

We are hearing that the US Senate Judiciary Committee is thinking of an immigration bill to hike the H1-B visa quota from the current 65,000 to 115,000 annually. Bill Gates is also lobbying for it. When this would happen?

Any bill must first go through the Senate Judiciary Committee, and be passed by them, then sent to the full Senate for review, amendment and vote, and then it must go through the reconciliation process with the House of Representatives. This can be a long and complex process. For more information you can visit www.senate.gov .

I am in this country in H1B visa. My company is making me work for 70 hours/week and billing its client the same. But I am being paid only for 40 hours/week. Since company is holding my VISA, I am afraid of speaking about it for the fear of losing job in terrible market. What kind of protection, I can get in California? How could I make my company pay for my 70 hours?

Sadly, the company has put you in a terrible position since you are being exploited. Unfortunately, although you have the legal right to report your company to DOL and CIS, practically speaking doing so could potentially create a difficult situation for you. Perhaps the best suggestion for you is to locate a new H-1B employer and change jobs. Then , you could report your current company and seek proper back wages.

I’m am about to hit the 3 year mark on my H1 and I’m wondering if I can extend it or do I need to leave the US?

You can extend it for another 3 years, but plan ahead so your current visa will not expire.

I am a 22 year old recent graduate from Ireland. My Bachelor of Arts Honors degree is in Film&Media with English Literature.

I spent the third year of my degree studying abroad at the University of California San Diego and after a life-changing experience, am determined to return to CA to establish my working life.

I would like to get into PR or a writing related job. Something creative. Does anyone know of any companies who have, or are willing to sponsor a H-1B Visa in these types of areas?

You may try posting on Craigslist.com or MySpace.com.

Once you have a prospective employer, have an experienced attorney explain the sponsorship process to them.

I am currently on OPT and it will end on June 30 2007. If an employer files for the H-1B Visa for me on or after 4/1/07, can I still stay legally in the US until 10/1/07 when my H-1B visa starts?

If your OPT expires ON or AFTER 8/1/07, you will be issued a change of status and an I-94. This means you will NOT be required to leave the US for Consular Processing. This is because you are allowed 60 days after your OPT expires to remain in status in the US.

If your OPT expires BEFORE 8/1/07, your H-1B petition will be approved, but your change of status will NOT be approved. You will be required to leave the US and attend an American Consulate for H-1B Stamping before returning to the US to start work on 10/1/07.

To avoid leaving the US, you must somehow maintain legal status. A possible solution is to re-enroll in school from the time your OPT or grace period expires until 10/01/07.

Can I have my petition filed from multiple cos/consultants?

Scenario is I have consulted one consultant who is ready to help me get H1B visa.

But I am not confident on him. To assure that I get H1B visa this year I want to approach some other (may be 2-3 more) consultants who can apply for my visa.

So is it technically possible that multiple consultants apply for my visa?

And if it is possible then once I get my petition approved from multiple consultants how do I get my visas?

Yes, each employer is allowed to file a separate H1Bs for you and you are allowed to have multiple concurrently running H1Bs. A word of caution, you may want to consider filing part time H1Bs because it will be physically impossible for you to work 40 hours and be paid the prevailing wage at all places of employment concurrently.

H-1B’s Gone too Soon, Now What?

In a recent article, The New York Times cited statistics from the Labor Department about ten major technology companies that currently outsource to India applied for over 100,000 H-1B visas last year. What happens when they don’t get the visas they applied for? The H-1B applicants don’t come to work in the U.S., and the jobs continue to go to India. These companies also likely had much to do with this year’s “H-1B Debacle”. On the very first day they were accepting applications for H-1B visas, the USCIS got nearly 120,000 petitions, many more than both the 65,000 and 20,000 caps combined, although the smaller cap was reached later in April.

The result was that H-1B “winners” were chosen by random selection (as opposed to intelligent design). Within a week, Senator Cornyn (R-TX) reintroduced the SKIL Act (S.1083) and Senator Hagel (R-NE) introduced “The High-Tech Worker Relief Act of 2007” (S.1092). Both bills would significantly raise the H-1B numerical cap and exempt additional workers from the cap.

I am a Marketing Manager for a tech company in Toronto. I have a MBA and I received a job offer from an American company. I understand that I can get a TN visa as a ‘Management Consultant’, but I have heard that those TN visas are heavily scrutinized by US immigration. Is that true? What other options are available to me?

You can get a TN visa as a Management Consultant but you are correct to say that these are closely scrutinized. In the alternative your company could do an H-1B Nonimmigrant Worker Petition for you but you must have a minimum of a Bachelors degree to do so. If you have not completed a Bachelors degree you must show 3 years of experience for each missing year of University education and your credentials will have to be evaluated by a company that does foreign experience/equivalency evaluations.

Hello, I am a TN visa holder, I got a full time job, and after 5 months working I want to quit my job. I would like to know how long can I stay in the country after my employee notifies immigration that I’m not longer working for them.

It would be only 30 days, it would be better if you got a new TN with another employer ASAP

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